Inside: The NLRB and individual rights in the non-union workplace

With the resolution of the constitutional challenges to the Affordable Care Act, or “Obamacare,” the next high profile dispute which will be faced by the Supreme Court in its current term involves the constitutionality of President Obama’s 2011 and 2012 appointments to the National Labor Relations Board (NLRB). While the substance of that dispute is of interest to both political scientists and legal academics, one might ask the very practical question of why, with all of the other issues facing the country and organized labor’s standing in the private workplace (at less than eight percent and still falling), would anyone care about the NLRB anyway?

If the NLRB and the statute it enforces, the National Labor Relations Act (NLRA), was relevant only to the more commonly understood areas of union organizing and collective bargaining, that question would indeed be a good one. However, as with many common assumptions in the area of labor and employment law, this is incorrect both as a matter of law and fact. The assumption is incorrect as a matter of law because the NLRA has long protected various forms of “concerted activity for mutual aid or protection” beyond traditional union activity. As a matter of fact it is incorrect most immediately in light of the ongoing efforts of the Obama-appointed NLRB majority to use an expansive definition of protected concerted activity to exert itself in many areas of the non-union workplace in which organized labor itself has never been, or has largely ceased to be, a relevant player.

Illustrative of both points are several controversial decisions issued by the NLRB during 2012. While these decisions themselves may not survive the pending Supreme Court challenge to the constitutionality of the appointments of the NLRB members who decided them, far more important is the glimpse they provide into the thinking of the Obama NLRB majority.

A particular focus of the NLRB’s efforts are employer rules and policies which, although neutral on their face, are in the agency’s view capable of being interpreted by employees as impinging upon some right to act collectively, even though they have never actually been interpreted or applied that way by the employer. Chief among these are confidentiality rules. It has long been the law, and the NLRB affirmed in Banner Health Systems, that it violates the NLRA for the employer to explicitly prohibit employees from discussing their wages and other working conditions with each other. The basis for this rule is pretty easy to understand: If employees have a legal right to act collectively regarding such matters, how can they exercise that right if they can’t talk to each other about those matters?

This Board, however, would go further and, in Banner Health, essentially created a rebuttable presumption that any rule prohibiting, or even requesting that employees refrain from, discussing any workplace issue — there the substance of an ongoing investigation of employee misconduct — is unlawful unless the employer proves on a case-by-case basis that the particular confidentiality interest present is sufficient to outweigh the employees’ rights to discuss any matters related to their employment.

Closely related to the handling of such confidentiality rules is the current NLRB’s treatment of rules governing “civility” of workplace communications and employee speech concerning the employer, its managers and supervisors and even fellow employees. For example, in Costco Wholesale Corp., the NLRB majority found unlawful a provision in the company’s employee handbook which prohibited social media and other postings that “damage the Company, defame any individual or damage any person's reputation . . . .” A few weeks later, relying upon this analysis in Costco, the NLRB in Karl Knauz Motors, Inc., found the following employer policy unlawful:

Courtesy is the responsibility of every employee.

Everyone is expected to be courteous, polite and friendly to our

customers, vendors and suppliers, as well as to their fellow employees.

No one should be disrespectful or use profanity or any other language

which injures the image or reputation of the Dealership.

The Board’s reasoning was that the terms “courtesy,” “respect” and “language which injures the image or reputation of the Dealership” could reasonably be construed prohibiting complaints about their working conditions in violation of the NLRA.

Beyond an employer’s right to limit the content of an employee’s speech, the current Board majority also seeks to limit the employer in the articulation of the employment policies which it is otherwise free to promulgate and apply. For example, it has become entirely common for non-union employers to attempt to pre-empt implied contract and other employee claims by stating explicitly that its employment relationship is terminable “at-will,” that employee handbooks and other documents are not contracts and that no such policies may be changed orally.

Although the NLRB itself has not yet addressed the issue, the general counsel alleged in several 2012 cases that such disclaimers violate the NLRA to the extent that they suggest that the at-will nature of the employment relationship can never be changed (such that, presumably, seeking to organize a union to negotiate such a change would be futile (American Red Cross, Arizona Blood Services Region))or that such a change can only be accomplished by an individual, written employment agreement (again, efforts to change the nature of the relationship through collective bargaining would be futile (Hyatt Hotels Corp.)).

The ultimate fate of any of these specific decisions remains questionable, but what remains clear beyond any serious question is the commitment of the NLRB majority to increasing its influence in the non-union workplace, whether or not organized labor itself is successful in doing so.

Contributing Author

James A. Matthews, III

James A. Matthews, III is co-chair of Fox Rothschild’s labor & employment law department. He has more than 25 years experience representing management in all...